Citation Nr: 0201355
Decision Date: 02/08/02 Archive Date: 02/20/02
DOCKET NO. 92-21 688 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder, to include post-traumatic stress disorder.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
D. M. Fogarty, Associate Counsel
INTRODUCTION
The veteran had active duty for training from June 1957 to
December 1957 and a period of active military service from
August 1963 to August 1966. He also had military service
from August 1966 to March 1976, but received an "other than
honorable" discharge for this period of service, which
included several years of absence without leave. By
Administrative Decision dated in August 1984, it was
determined that the veteran's period of service from August
1963 to August 18, 1966, was considered to be under honorable
conditions whereas his discharge for the period from August
19, 1966, to March 1976 was found to be a bar to Department
of Veterans Affairs (VA) benefits based on that period.
38 U.S.C.A. § 5303 (West 1991).
This matter was originally before the Board of Veterans'
Appeals (Board) on appeal from an October 1991 rating
decision by the Houston, Texas, Regional Office (RO). The
Board remanded this matter to the RO in April 1994, October
1996, and December 1998 (after finding the case to be well-
grounded) for further development of the record. The case
has now been returned to the Board for further appellate
consideration.
FINDINGS OF FACT
1. The nervousness noted in 1963 during the veteran's period
of honorable service was acute in nature and resolved without
leaving residual acquired psychiatric disability.
2. The veteran did not engage in combat with the enemy
during his period of honorable military service, and there
are no verified stressors for his period of honorable
military service.
3. The veteran's current acquired psychiatric disorder, to
include post-traumatic stress disorder (PTSD), was not
manifested during his period of honorable military service
and is not otherwise related to his honorable military
service.
CONCLUSION OF LAW
Entitlement to service connection for an acquired psychiatric
disorder, to include PTSD, is not warranted. 38 U.S.C.A.
§§ 1110, 1131, 5107, 5303 (West 1991 & Supp. 2001); 38 C.F.R.
§§ 3.303, 3.304 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that on November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (2000), now codified at
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2001).
This newly enacted legislation provides, among other things,
for notice and assistance to claimants under certain
circumstances. VA has issued final rules to amend
adjudication regulations to implement the provisions of the
VCAA. See 66 Fe. Reg. 45,620 (August 29, 2001) (to be
codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a)). The intended effect of the new regulation is
to establish clear guidelines consistent with the intent of
Congress regarding the timing and the scope of assistance VA
will provide to a claimant who files a substantially complete
application for VA benefits, or who attempts to reopen a
previously denied claim. Where laws or regulations change
after a claim has been filed or reopened and before the
administrative or judicial process has been concluded, the
version most favorable to the appellant will apply unless
Congress provided otherwise or has permitted the Secretary of
Veterans Affairs to do otherwise and the Secretary has done
so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991).
After reviewing the claims folder, the Board finds that there
has been substantial compliance with the assistance
provisions of the new legislation. The record includes
responses from the National Archives and Records
Administration (NARA), requests for records from the U. S.
Armed Services Center for Research of Unit Records (USASCRUR)
and a memorandum in response regarding the need for
additional specific information from the veteran, all
available service medical and personnel records, responses
from the National Personnel Records Center, medical records
relied upon by the Social Security Administration, and VA
treatment records. The Board notes that the veteran has
reported that he is unable to provide any additional specific
information in regard to his alleged stressors.
Significantly, no additional pertinent evidence or
information has been identified by the veteran as relevant to
the issue on appeal. Under these circumstances, no further
action is necessary to assist the veteran with this claim.
Furthermore, the veteran has been notified of the applicable
laws and regulations which set forth the criteria for
entitlement to service connection for an acquired psychiatric
disability, including post-traumatic stress disorder (PTSD).
The discussions in the rating decision, statement of the
case, and supplemental statement of the case have informed
the veteran of the information and evidence necessary to
warrant entitlement to the benefit sought. The Board
therefore finds that the notice requirements of the new law
have been met.
The Board has reviewed the facts of this case in light of the
VCAA and the new VCAA regulations. As discussed above, VA
has made all reasonable efforts to assist the claimant in the
development of the claim and has notified the veteran of the
information and evidence necessary to substantiate the claim.
Consequently, the case need not be referred to the veteran or
his representative for further argument as the Board's
consideration of the new law and new regulations in the first
instance does not prejudice the veteran. See generally
Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4
Vet. App. 384 (1993); VAOPGCPREC No. 16-92 (July 24, 1992).
Under the circumstances of this case, where there has been
substantial compliance with the VCAA, a remand would serve no
useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided).
Factual Background
A review of the veteran's service medical records reflects
that he was treated for a complaint of nervousness on one
occasion in September 1963. He was treated with medication
and no subsequent treatment relevant to nervousness is noted
in the service medical records dated prior to August 19,
1966. Clinical records demonstrate that the veteran was
bitten by a rat in February 1967. He was treated for
hepatitis in April 1967 and subsequently evacuated to a
hospital in Okinawa. The veteran also received treatment for
a claimed personality change in March 1968. A clinical
record dated in May 1968 demonstrates a diagnosis of adult
situational maladjustment, acute, moderate; manifested by
anxiety, depression, and sleep disturbance.
VA treatment records dated in 1991 demonstrate mental health
treatment with relevant assessments of dysthymia, anxiety,
and substance abuse. VA hospital summaries dated in 1991
reflect various relevant assessments of substance dependence,
dysthymic reaction, possible PTSD, and personality disorder,
passive-aggressive type.
In May 1992, the veteran reported being stationed in Vietnam
in June 1964. He also reported seeing his company's 2nd
Lieutenant shot in the head by friendly fire. He stated that
his nightmares began after that incident. The veteran
reported being bitten by a rat in his sleep a few months
later. He also reported seeing a dead "Viet cong" that had
tried to cross the perimeter the night before. The veteran
stated that the dead man was the barber that had cut their
hair earlier. In a September 1992 statement, the veteran
reported being in Vietnam in 1964 and 1965. He stated that
he was bitten by a rat about nine months after arriving in
Vietnam and being evacuated to Okinawa for hepatitis. In an
April 1994 statement, the veteran indicated that he was in
Vietnam from 1965 to 1966. In a May 1995 statement, the
veteran stated that he originally reported being in Vietnam
from 1964 to 1965, but after reviewing his medical records,
he realized that his Vietnam service was at a later time. In
a June 1996 statement, the veteran reported seeing J. R., a
person from his hometown, at the 85th Evacuation Hospital,
who was later killed in Vietnam. In a November 1996
statement, the veteran reported that he served with the HHC
34th S & S BN, 1 CAV Division, while in Vietnam.
A September 1994 letter from the National Personnel Records
Center documents clinical treatment in 1967 at the 85th
Evacuation Hospital, Vietnam.
The record further demonstrates that in February 1996, the
veteran began receiving disability benefits from the Social
Security Administration, effective from August 1994. The
records relied upon by the Social Security Administration
indicate various assessments of depressive reaction,
substance abuse, dysthymia disorder with anxiety, possible
PTSD, passive aggressive type personality disorder, dependent
personality disorder, generalized anxiety (not otherwise
specified), depressive reaction, and severe anxiety state. A
January 1995 private evaluation report indicates that the
veteran reported experiencing nervousness, which began while
he was in Vietnam in 1966 and 1967. He reported being
involved in combat and shooting frequently, but he could not
recall if he killed people. He also reported being bitten by
a rat in 1968. Diagnoses of generalized anxiety disorder,
PTSD, mild to moderate, and polysubstance dependence in
remission were noted.
VA treatment records dated in 1996 reflect assessments of
depression, polysubstance dependence, bipolar depression
(recurrent) with suicidal ideation, anxiety with depression,
dependent personality, and passive aggressive personality
disorder. A December 1997 VA psychological assessment
reflects a diagnosis of PTSD. In that report, it is noted
that the veteran reported he did not participate in combat,
but did participate in perimeter guard duty of an air base.
The veteran described witnessing the killing of two U. S.
soldiers by their platoon sergeant.
In a February 1999 stressor statement, the veteran reported
arriving in Vietnam in June 1966. He stated that he began
having problems right away because his pay records and
medical records were missing. The veteran reported worrying
and losing sleep over those problems. He stated that most of
his duty was guarding the perimeter line by the base
airstrip. He stated that he saw his company's 2nd Lieutenant
shot in the head by friendly fire. The veteran reported that
he began experiencing nightmares after that. He also
reported shooting an enemy person trying to break through the
perimeter, only to later find out that the person was the
base barber. The veteran stated that two soldiers were
killed on Christmas Eve in 1966 by a member of his squad who
was drinking heavily and using drugs.
An August 1999 memorandum from a congressional assistant
indicates the veteran reported that the shooting of the 2nd
Lieutenant took place in October 1966, and the barber was
shot in February or March of 1967.
In December 1999, the RO requested a search by the USASCRUR
for combat action reports and other pertinent data to support
the veteran's claimed stressors. The record subsequently
reflects that the USASCRUR closed the veteran's case due to a
lack of sufficient information to perform a search. In
October 2001, the RO wrote the veteran and requested further
details of the veteran's stressor, such as the Lieutenant's
name and unit of assignment, and the surrounding
circumstances. In an October 2001 reply, the veteran stated
that he was in Vietnam from 1966 to 1967 and could not
remember any additional more details or circumstances.
In December 1999, the RO received information from the NARA
for the period from October 1966 to December 1966. The
veteran's name appears on November 1966 rosters as well as a
February 1967 roster.
Analysis
Basic entitlement to disability compensation may be
established for a disability resulting from personal injury
suffered or disease contracted in the line of duty or for
aggravation of a preexisting injury suffered or disease
contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131.
Service connection connotes many factors but basically means
that the facts, shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein. 38 C.F.R.
§ 3.303(a). Service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
It should be noted here that personality disorders are not
diseases or injuries within the meaning of applicable
legislation regarding service connection. 38 C.F.R.
§ 3.303(c).
With regard to PTSD, the Board observes that prior to March
7, 1997, governing regulations provided that service
connection for PTSD required medical evidence establishing a
clear diagnosis of the condition, credible supporting
evidence that the claimed in-service stressor actually
occurred, and a link, established by medical evidence,
between the current symptomatology and the claimed in-service
stressor. If the claimed in-service stressor is related to
combat, service department evidence that the veteran engaged
in combat or that the veteran was awarded the Purple Heart,
Combat Infantryman Badge, or similar combat citation will be
accepted, in the absence of evidence to the contrary, as
conclusive evidence of the claimed in-service stressor. See
38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f) (1996).
However, effective March 7, 1997, that regulation was amended
to read as follows: Service connection for PTSD requires
medical evidence diagnosing the condition in accordance with
Sec. 4.125(a) of this chapter; a link, established by medical
evidence, between current symptoms and an in-service
stressor; and credible supporting evidence that the claimed
in-service stressor actually occurred. If the evidence
establishes that the veteran engaged in combat with the enemy
and the claimed stressor is consistent with the
circumstances, conditions, and hardships of the veteran's
service, the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. If the
evidence establishes that the veteran was a prisoner-of-war
under the provisions of Sec. 3.1(y) of this part and the
claimed stressor is related to that prisoner-of-war
experience, in the absence of clear and convincing evidence
to the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions and hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)
(effective March 7, 1997). Pursuant to Karnas v. Derwinski,
1 Vet. App. 308 (1991), the Board must consider both versions
of the regulation and apply the more favorable to the
veteran.
The record in this action demonstrates a medical diagnosis of
PTSD in the 1990's. However, simply because a physician or
other health professional accepted the veteran's description
of his service experiences as credible and diagnosed him as
suffering from PTSD does not mean that the Board is required
to grant service connection. See Wilson v. Derwinski, 2 Vet.
App. 614, 618 (1992). The Board is not required to accept an
appellant's uncorroborated account of his active service
experiences. See Swann v. Brown, 5 Vet. App. 229, 233
(1993). The existence of an event alleged as a "stressor"
that results in PTSD, though not the adequacy of the alleged
event to cause PTSD, is an adjudicative determination, not a
medical determination. See Zarycki v. Brown, 6 Vet. App. 91
(1993). Although the veteran has reported stressors which
occurred during his Vietnam service, the RO has been unable
to verify any of the alleged stressors despite numerous
efforts. Thus, there are no verified stressors for the
period of honorable service or for the period of service from
August 19, 1966 to March 1976.
Furthermore, the veteran's service personnel records do not
establish that he engaged in combat with the enemy or that he
was awarded any medals, decorations, or commendations
consistent with combat service. The veteran's own statements
in this regard are ambiguous at best. On some occasions he
has reported that he was not engaged in combat, only guard
duty; however, on other occasions he has apparently reported
being involved in combat and shooting his weapon. Under the
framework established in Zarycki, the Board must make a
specific determination as to whether the veteran engaged in
combat with the enemy. In VAOPGCPREC 12-99, the VA General
Counsel held that the plain language of 38 U.S.C.A. § 1154(b)
required that the veteran have "personally participated in
events constituting an actual fight or encounter with a
military foe or hostile unit or instrumentality." In the
present case, based on a detailed review of the veteran's
service records, statements, and medical records regarding
his period of honorable service from August 1963 to August
18, 1966, the Board finds that the evidence does not support
the conclusion that the veteran engaged in combat with the
enemy. While the veteran did apparently serve in Vietnam
from June 1966 to April 1967, only the period of service from
June 1966 to August 18, 1966 was honorable. While the
veteran may have been in a combat zone during his period of
active service from June 1966 to August 18, 1966, the service
personnel records and service medical records do not support
a finding that he ever engaged in combat with the enemy
during his period of honorable service. Additionally,
evidence of record for the period from August 1963 to June
1966 appears to indicate the veteran was stationed in the
continental United States. Where the record does not reflect
that the claimant engaged in combat with the enemy under
38 U.S.C.A. § 1154(b), his assertions, standing alone, cannot
as a matter of law provide evidence that he "engaged in
combat with the enemy" or that an event claimed as a
stressor actually occurred. See Dizoglio v. Brown, 9 Vet.
App. 169 (1996).
The record also suggests that the stressors alleged by the
veteran may have occurred in October 1966 and thereafter, or
at times unknown by the veteran. As previously noted, the
veteran's period of service from August 19, 1966, to March
1976 has been found to be a bar to VA benefits based on that
period. 38 U.S.C.A. § 5303. Therefore, service connection
for an acquired psychiatric disorder, including PTSD, may not
be granted based upon stressors, treatment, diagnoses, or
incidents alleged to have occurred during the period from
August 19, 1966, to March 1976.
The evidence of record suggests that the veteran arrived in
Vietnam in June 1966 and service medical records are silent
for any treatment or diagnoses related to an acquired
psychiatric disorder or PTSD for the period between June 1966
and August 1966. The Board recognizes that the veteran's
service medical records demonstrate treatment for nervousness
on one occasion in 1963. However, the remainder of the
service medical records for the veteran's period of honorable
service (August 1963 to August 1966), are silent for any
treatment, complaints, or diagnoses relevant to nervousness
or a psychiatric disability. Furthermore, the medical
evidence of record does not establish a causal connection
between the veteran's current acquired psychiatric disorder,
including PTSD, and his period of honorable service.
The Board does recognized the episode of nervousness in 1963.
However, this appears to have been an isolated incident in
that no subsequent complaints or findings of nervousness were
reported from 1963 through the remainder of his honorable
service which ended August 1966. Thus, the Board concludes
that the nervousness noted during service in 1963 was acute
in nature and resolved without any residual disability.
Further, in light of the lack of treatment or diagnoses
related to PTSD or an acquired psychiatric disability during
the period of honorable service, other than the isolated 1963
entry, and the post-service medical evidence relating the
veteran's current psychiatric disability to unverified
incidents alleged to have occurred in Vietnam during a period
of service for which the veteran is barred from receiving VA
benefits, the Board concludes that the preponderance of the
evidence is against entitlement to service connection for an
acquired psychiatric disability, to include PTSD. It follows
that there is not such a state of approximate balance of the
positive evidence with the negative evidence to otherwise
warrant a favorable decision. 38 U.S.C.A. § 5107(b).
ORDER
The appeal is denied.
ALAN S. PEEVY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.